Central Bank & Trust Co. v. Banner Trading Co.

• Decision Date: 29 October 1963
• Docket Number: Nos. 62-705,62-706,s. 62-705
• Citation: 157 So.2d 201
• Parties: CENTRAL BANK AND TRUST COMPANY, a Florida banking corporation, Appellant, v. BANNER TRADING CO., Inc., a Florida corporation, Appellee. CENTRAL BANK AND TRUST COMPANY, a Florida banking corporation, Appellant, v. E. M. FINKEL, also known as Emanuel Finkel, Appellee.
• Court: Florida District Court of Appeals

Page 201

157 So.2d 201

CENTRAL BANK AND TRUST COMPANY, a Florida banking corporation, Appellant, v. BANNER TRADING CO., Inc., a Florida corporation, Appellee.

CENTRAL BANK AND TRUST COMPANY, a Florida banking corporation, Appellant, v. E. M. FINKEL, also known as Emanuel Finkel, Appellee.

Nos. 62-705, 62-706.

District Court of Appeal of Florida, Third District.

Oct. 29, 1963.

Rehearing Denied Nov. 21, 1963.

Pallot, Marks, Lundeen, Poppell & Horwich, Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellant.

Joseph Pardo, Mitchell M. Goldman, Miami, for appellees.

Before BARKDULL, C. J., and CARROLL and TILLMAN PEARSON, JJ.

BARKDULL, Chief Judge.

The instant litigation arose out of a financial transaction between the appellant and the appellee, Banner Trading Co., Inc., and the appellee, Finkel, wherein the bank issued certain letters of credit for the purchase of foreign automobiles on behalf of Banner and, in connection therewith, the appellee, Finkel, executed an agreement of guaranty as to a portion of the letters of credit. As security (in addition to the guaranty), the bank held the titles to the automobiles and a portion of same were stored in bonded warehouses under the bank's exclusive control. It was a typical financing arrangement, wherein the bank financed the purchase of the automobiles by Banner and was to be repaid its advancement from the sales of the automobiles. It held both the title and possession of the automobiles naterial to the determination of this cause plus the guaranty of Finkel.

Under circumstances not entirely clear in the record, after all the automobiles had been released from the bonded warehouse and disposed of, the bank was short on the repayment of the monies advanced and brought a suit at common law against Finkel on his guaranty. Thereafter, Finkel filed a chancery proceeding, contending that the bank had wrongfully released the automobiles securing the letters of credit, and sought to enjoin the common law action seeking to collect against him on his guaranty. The appellee, Banner Trading Co., Inc., joined in this chancery suit and sought an accounting (along with the appellee Finkel) of the receipts and disbursements of the bank plus damages. The two cases were consolidated for trial, at the conclusion of which the trial judge in the common law action (tried non-jury) entered a final judgment in favor of the appellee, Finkel, upon a finding that the bank had failed to sustain the burden of proof. He made extensive findings in the chancery cause, some upon contested issues to the effect that the bank had wrongfully disposed of the collateral security for its letters of credit and, therefore, the bank was liable to Banner Trading Co., Inc. for the loss sustained by Banner Trading Co., Inc., to wit: the gain it would have realized on the sale of the 40 automobiles unaccounted for. These appeals were prosecuted from the final judgment and said final decree, and were consolidated for purposes of record, briefs and oral argument.

Although assignments of error were appropriately filed contesting the correctness of the common law final judgment, no point was made on the appeal addressed to these assignments of error and, therefore, said assignments are deemed abandoned. See: Ramsey v. Aronson, Fla.App.1957, 99 So.2d...